Bush officials trumpet mine ruling appeal

WHITE SULPHUR SPRINGS — The Bush administration moved Thursday to appeal the latest in a series of federal court rulings to limit mountaintop removal coal mining.

Lawyers for the Army Corps of Engineers appealed the July 8 ruling by U.S. District Judge Joseph R. Goodwin to the 4th U.S. Circuit Court of Appeals in Richmond, Va.

The formal notice of appeal was filed Thursday morning in federal court in Huntington.

By noon, President Bush’s top environmental adviser was announcing the action during a luncheon at the 68th annual state Business Summit at The Greenbrier.

James L. Connaughton, chairman of the White House Council on Environmental Quality, said that Goodwin’s ruling “put a halt to work West Virginia coal miners do for their communities.”

Asked what miners were affected by the decision, Connaughton said, “This decision prevented moving forward with projects that had been approved but not yet started.”

The announcement comes as a television ad by a group with ties to the White House criticizes Democratic presidential candidate John Kerry for voting in 1999 not to overturn a previous decision by then-U.S. District Judge Charles H. Haden II to limit mountaintop removal.

Twice, the 4th Circuit — considered the most conservative federal appeals court in the country — overturned Haden decisions to curb mining abuses.

In his decision, Goodwin said the corps could no longer approve mining valley fills through a streamlined permit process meant only for activities that cause minor environmental damage.

Rather than these “general” or “nationwide” permits, Goodwin said, coal companies must go through individual permit reviews when they propose to bury streams with waste dirt and rock.

The judge ruled with the Ohio Valley Environmental Coalition, and ordered the corps not to issue new Clean Water Act permit for valley fills in Southern West Virginia without individual reviews.

Originally, the judge also told the corps to suspend “general” permits for 11 existing operations if they had not yet started valley fill construction.

A month later, on Aug. 13, Goodwin expanded that part of his ruling to suspend all such permits where construction of valley fills had not started as of the July 8 date of his original ruling.

In a court filing last week, coal industry lawyer Bob McLusky complained that the expanded order’s “retroactive effect will have a significant and inequitable impact on the mining industry in West Virginia.

“By forcing many dozen operators simultaneously to seek individual permits, the court has practically guaranteed that the corps’ administrators will be unable to process applications for individual permits in a timely manner, thereby forcing the closure of some operations,” McLusky wrote.

McLusky added that Goodwin “has — perhaps unintentionally — unfairly visited the threat of economic ruin on many coal operators who have expended millions of dollars on equipment and leases in reliance on their corps authorizations.”

Bill Raney, president of the West Virginia Coal Association, said that work is being done to determine how many miners would be affected.

In a prepared statement Thursday, assistant Attorney General Thomas L. Sansonetti said that Goodwin’s decision “will substantially curtail production of West Virginia coal that is low in sulfur and, therefore, less polluting.

“Although the mining companies may still apply for individual permits under the Clean Water Act ... [the ruling] prevents the corps from effectively using a less burdensome and more streamlined statutory program that has been in place since 1984,” Sansonetti said.

“The administration remains committed to protecting human health and the environment in all mining authorizations, but believes that the court erroneously invalidated a key tool in regulating mining projects.”

Sansonetti also complained that Goodwin’s ruling, “means there are now inconsistent standards for coal mining in the U.S.”

Goodwin limited his ruling to the federal court district in Southern West Virginia. “In contrast, the order does not affect coal mining in any other portion of West Virginia or any other state,” Sansonetti said.

In June, however, Bush administration lawyers argued that any ruling by Goodwin would have to be even narrower.

“It is ironic that the Justice Department criticizes the court’s decision for creating inconsistent standards in different parts of the country, when the government itself urged the court to limit its injunction in this case to Southern West Virginia, where the plaintiffs lived and the challenged mines were located,” said Jim Hecker, a lawyer from Trial Lawyers for Public Justice who represented environmentalists in the case.

Joe Lovett, another of the citizen group lawyers, said the Bush administration “is making a mistake by sending the chief bigwig of its Council on Environmental Quality down here to politicize its appeal of Judge Goodwin’s order.

“We know that West Virginians oppose efforts to weaken the laws that protect our mountains and streams, and I am just sorry that the Bush administration is more interested in rewarding its contributors in the coal industry than in carrying out the wishes of the great majority of the state’s citizens,” Lovett said.

Through early August, the Bush campaign had received more than $230,000 in contributions from the coal industry, according to the Center for Responsive Politics.

So far this election cycle, the coal industry has contributed $1.7 million to federal campaigns. Almost all of that money — $1.5 million of it — has gone to Republicans.